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15 October 2011

Following Instructions: Origami and Other Crafts

Craft kits, knitting instructions, embroidery designs, and origami diagrams are rarely (if ever) accompanied by an intellectual property rights licence. However, they may well be protected by various intellectual property laws including copyright.

There is little doubt that written instructions to create various crafts would invariably be protected by copyright law either as artistic or literary works, or both (provided the general requirements for ‘copyrightability’ were met). An ambiguity would, however, appear if one were to consider the objects created through the use of the instructions.

The legal situation may vary considerably depending on the subject of the instructions: in the case of handicrafts including Origami, following the instructions to make an object would result in the creation of an artistic work which is protected by copyright. (Section 2(c) of the Copyright Act, 1957 defines an ‘artistic work’ so as to include paintings, sculptures, drawings and other works of artistic craftsmanship.) On the other hand, following instructions to knit a sweater would result in the creation of a non-copyrightable object (since, in India, there is no copyright in clothes).

In both cases the finished product would have been derived from the instructions, and considering that the right to create derivative works is a right which is included in the copyright bundle, the owner of the right would have the exclusive right to do so. However, it is possible that craft instructions could be separated into two distinct categories depending on the ‘copyrightability’ of the finished object.

Should the finished object be capable of independent copyright protection, the position stated above with reference to derivations would undoubtedly apply. That being said, one may conclude that the absence of an explicit licence to create a finished product on the basis of the instructions automatically presumes that the instructions are accompanied by an implicit licence. After all, there is very little point in publishing instructions if the intention is not to allow persons to create the object described in them.

The problem with assuming that an implied licence is granted is that there is absolutely no certainty regarding the terms under which it may have been granted. For example, one question which would arise is whether the licence would be limited to personal use or whether it would extend to commercial use. Also, if a licence were granted, the licence would generally subsist for only five years from the date it came into effect, unless one were to presume that the author of the instructions intended that the licence be perpetual. Similar presumptions would also have to be made with regard to territory, in order to have the licence be applicable worldwide, as the statute would restrict the territory of the licence to India alone.

The validity of such presumptions is extremely doubtful though, especially since Indian law specifies that a copyright licence must be written down and signed by the licensor. Clearly, there is no way in which this requirement may be satisfied in the case of an implied licence, which would rely exclusively on the circumstances for its terms to be defined.

The other possible way to look at the situation is to assume that an implied licence is not granted but that persons may follow the instructions to create the object described by relying on fair use principles to protect them from allegations of copyright infringement. However, this approach too is not without pitfalls.

Firstly, although India recognises fair use principles, ‘fair use’ is treated as being part of copyright doctrine, as it is not spoken of in the copyright statute. Instead, the statute enumerates a variety of fair dealing exceptions to copyright infringement. Any act falling within the scope of any of these exceptions would not be treated as punishable infringement.

Among the fair dealing exceptions is Section 52(1)(t) of the Copyright Act which allows “the making or publishing of a painting, drawing, engraving or photograph of a sculpture, or other artistic work failing under sub-clause (iii) of clause (c) of section 2, if such work is permanently situate in a public place or any premises to which the public has access”. Clearly, this would allow a reproduction of a sculpture to be made, if it had been placed in a museum, for example, presumably even if it the reproduction was for the purpose of sale as the provision does not restrict “making or publishing” to “non-commercial making or publishing”.

Although this Section would allow for the reproduction of, say, a work of Origami displayed in a museum, it is not especially helpful in terms of discerning the law relating to the creation of objects by following copyrighted instructions. In all probability, to do so, one would have to fall back on fair use principles. Unfortunately, as mentioned earlier, these principles are not explicitly recognised by the Copyright Act, and as such, although reference may be made to Title 17 of the USC, fair use is not a subject on which the law is crystal clear. All that may be said is that the use of a copyrighted work without the permission of the owner (to create a derivative work) would generally be considered to be fair if the use was is non-commercial, personal or possibly private, and did not detrimentally affect the market for the work. Further, in the case of instructions, an argument could easily be made in favour of the existence of an intention that the instructions be followed to create the object described in them.

As such, one way of the other, when copyrighted instructions explain how to make a copyrightable object, one can quite safely assume that one is permitted to use to the instructions to make the object described, as long as one does so in a private atmosphere, and not with the intention of selling the object.

Where, however, copyrighted instructions explain how to make an object which cannot be protected by copyright (such as clothes), it is possible that the object described (once made) may be used in a commercial scenario as well. Although the object would undoubtedly be a derivative work, it would be a derivative work not subject to copyright protection. There were indications in Rajesh Masrani v. Tahiliani Designs Pvt. Ltd. [2009 (39) PTC 21] that a non-copyrightable object may be indirectly protected through underlying designs. However, this case dealt with haute couture, and it is possible that it would not be generally applicable.

Either way, the possibility that it would be legitimate to sell non-copyrightable objects created from copyrighted instructions is merely an additional right, and would not affect the basic position that, in all probability, it is legal to use copyrighted instructions to create the object described in them for private use, even if the instructions are not accompanied by an explicit licence to that effect.

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